2 min

Marriage 101

Learn your way around common law before you tie the knot

As legislation in Canada finally catches up to reality in the fashionably late year of 2003, gay and lesbian couples are having quickie weddings across Ontario and British Columbia.

But what same-sex couples need to know before they tie the knot is that they may already have most of the rights – and responsibilities – that heterosexual couples have.

According to Outlaws and Inlaws, a guide published by Egale Canada earlier this year, most of the laws that apply to married couples and heterosexual common-law couples now apply to all common-law couples – regardless of gender.

The definition of “common law” varies among the provinces, but regardless, three criteria must be met clear across the country: cohabitation, duration and conjugality.

Cohabitation means simply living together, but in some cases, may allow for partners living in separate cities. To be considered common-law, a relationship’s duration must be at least one to three years.

The final, and perhaps most important, criteria is conjugality. While conjugality is generally considered to mean sexual relations between partners, under the law it also includes other factors, such as sharing a house, sharing household tasks, pooling finances and raising children. For conjugality to be assumed, the couple doesn’t necessarily have to be “out” to family and friends.

While the specifics of these criteria differ by province, they are all captured in the “common law” definition under Bill C-23, the Modernization of Benefits and Obligations Act. The bill received royal assent on Jun 29, 2000, and led to the amendment of 68 federal statues, giving common-law partners – in any gender combination – nearly all the rights and responsibilities of heterosexual married couples under federal law.

Because of these amendments, gay and lesbian couples were suddenly made equal under the Income Tax Act, the Canadian Pension Plan and the Old Age Security Act, and were allowed conjugal visits in prison and equal recognition under the conflict of interest legislation.

They were also given equal rights under employment insurance laws to relocate to be with a same-sex partner. Later, the Immigration Act was also modernized to recognize same-sex unions.

Provincially, in the fall of 1999, Ontario introduced Bill 5, effectively adding the term “same-sex partner” to a number of laws. In Ontario, gay and lesbian partners were granted the right to claim spousal support, to claim for relief if inadequate provisions were made in a partner’s will and to make medical decisions if a partner is incapacitated.

Same-sex partners became recognized under the Workers’ Compensation Act and were allowed to bring action for damages if a partner was fatally injured.

Same-sex partners were also included and covered under provincial insurance and pension legislation, and made equal under conflict of interest legislation.

They were given the right to take a partner’s name and finally, with changes to the Child and Family Services Act, same-sex couples in Ontario were given the right to adopt children.

While this provincial legislation was a big step in the fight for equality, it failed to give gays or lesbians the right to inherit if a same-sex partner dies without a will, or to create provisions for the equal division of property if a relationship ends.